Petition — Greenfield v. United States

ay Supreme Cours U,

FILED

JUL 5 1978

IN THE

|

Supreme Court of the United paws RODAK, JR, CLERK

OCTOBER TERM, 1978

No. %8-24 *

WILLIAM RUSSELL GREENFIELD, JR., M. D.,

Petitioner

versus

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

James Jerry Wood

Attorney for Petitioner

P. O. Box 4189

Montgomery, Alabama 36101

er eS a ge wie earaen

cca bent cha uhadeavée aes eaeban

i ae eo se eee eueme’

Constitutional Provisions and Statues Involved. ......

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Reasons for Granting Writ...................00-

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.

TABLES OF CASES —

Brady v. Maryland, 373 U.S. 83, 83 S, Ct. 1194,

BP Rae SRD LEOOOD 5 boc cvecoscccvecces 2, 7,11

Bollenbach v. United States (1946), 326 U.S. 607,

er ee eee ke Sh bk ae’ bo'c.0.0 00:8 8

ee le Seb hkb py eda w Ee Cows en's 10

United States v. McKeever (S.D. NY 1958), 169 F.

Supp. 426, rev’d on other grounds (2 Cir. 1959),

EE he ee ar gS ee hk sia Gin 0.00 7

United States v. McMillan (8 Cir. 1974), 508 F.2d

101, 104, cert. den, 421 U.S. 916, 95 S.Ct.

Be oe AW LAM FO CRTs ccc ct cccesccecces 7

United States v. Philip Onori (5 Cir. 1976), 535

ESERIES 9S Geen Ee ee 7

United States v. Russell (1973), 411 U.S, 423, 93

S.Ct. 1637, 36 L.Ed.2d 366 ............... 10, 11

Quercia v. United States (1933), 289 U.S. 466, 53

ne oe er cs Cede cee eee ubeise 8

STATUTES

Federal Rules of Evidence Rule 403........... 5, 8, 9

Federal Rules of Evidence Rule 404(b)............. i)

United States Code, Title 21, $841(a)(1) ........... 4

iii

CONSTITUTIONAL PROVISIONS

Amendment Five, Constitution of the United States. 4, 11

1

IN THE

Supreme Court of the Hnited States

OCTOBER TERM, 1978

NO.

WILLIAM RUSSELL GREENFIELD, JR., M.D.,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

TO THE HONORABLE, THE CHIEF JUSTICE AND

ASSOCIATE JUSTICES OF THE SUPREME COURT OF

THE UNITED STATES:

William Russell Greenfield, Jr., M.D, the Petitioner

herein, prays that a Writ of Certiorari issue to review

2 ~

the judgment of the United States Court of Appeals for

the Fifth Circuit entered in the above-styled case on

June 5, 1978.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit is printed in Appendix A hereto,

infra, page 16. The judgment of the United States Court

of Appeals for the Fifth Circuit is printed in Appendix

A hereto, infra, page 23.

JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Circuit (Appendix A, infra, page 23 ) was

entered on June 5, 1978. The jurisdiction of the Supreme

Court is invoked under Rule 19(1)(b), Revised Rules of

the Supreme Court of the United States.

QUESTIONS PRESENTED

I

Whether the destruction by government agents of four

of the nine taped conversations between the government

agent and the Defendant violated the Defendant’s Con-

stitutional rights under the rule of Brady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

II

Whether the admission of the five tapes, in which

approximately half of the material was admittedly either

unintelligible, inaudible, or contained gaps, was so pre-

judicial to the Defendant as to violate his constitutional

right to a fair trial.

Ii,

Whether the basic constitutional standards for the ad-

mission of electronically gathered evidence were met es-

pecially when the Court had been advised that the basic

integrity of the tapes and of the government agent who

made the tape$*was in question and where four tapes had

been destroyed without any record and where the tapes

had no clearly defined beginning and ending, and where

there was no agreement by the Court and the lawyers

on much of what was being said on the tapes.

IV.

Whether, in the factual context of this case, consider-

ing the conviction of the Defendant-Appellant on the one

single count on which the Court mistakenly explained the

evidence to the Jury, over the objection of the Defendant,

the Court’s actions were so prejudicial as to require re-

versal.

V.

Whether the Defendant’s Constitutional rights under the

Fifth Amendment of the Constitution of the United

States were violated by the admission of evidence concern-

ing courts on which the Defendant had been previously ac-

quitted.

4

VI

Whether the evidence from the government’s own wit-

nesses established entrapment as a matter of law.

CONSTITUTIONAL PROVISIONS AND

STATUES INVOLVED

I,

Constitution of the United States, Amendment V

“no person shall...be subject for the same offense

to be twice put in jeopardy of life or limb...nor be

deprived of life, liberty, or property, without due pro-

cess of law.....”’

Il.

Title 21, Section 841(a)(1), United States Code

‘* it shall be unlawful for any person knowingly

or intentionally...to...distribute, or dispense...

[ without a legitimate medical purpose ]....”’

STATEMENT OF THE CASE

William Russell Greenfield, Jr., M.D., was orginally

indicted in the Middle District of Alabama on April 8,

1976. The ten count indictment charged in each count a

violation of Title 21, §841 (a)(1), United States Code.

Dr. Greenfield was orginally tried on May 17, 1976, be-

fore the Honorable Frank M. Johnson, Jr., in a jury trial

which lasted two days. At the conclusion of the trial, the

Jury returned a verdict of guilty on three counts of the in-

dictment, counts VII, VIII, and IX.

On the 19th day of May, 1976, the Court entered an

Order adjudging the Defendant Greenfield guilty and sen-

tenced Dr. Greenfield to the custody of the Attorney

General for a period of two years with a two year special

parole term.

Dr. Greenfield appealed his conviction to the Fifth

Circuit on Appeals and his convictiyn was reversed by that

Court on August 3, 1977.

Prior to his second trial, Dr. Greenfield strenuously ob-

jected to the evidentiary use by the United States of five

tapes obtained by use of electronic surveillance on the

basis that four other tapes had been attempted and des-

troyed by the government agents and five tapes which

were available were unintelligible, contained gaps, con-

tained speakers which were incorrectly identified by the

government, had no determinable beginning and ending,

no verification that they were made on a particular date,

time or location, and that they were not complete. An in

camera hearing on the five tapes was held on September 5,

1977. The Judge allowed the five tapes and government

prepared transcripts to go into evidence over Dr.

Greenfield’s objections.

The Trial Court allowed over objection detailed ‘“proof”’

of prescriptions upon which Dr. Greenfield had previously

been acquitted in violation of Rule 403 Federal Rules of

Evidence.

The Trial Court refused to direct a verdict at the close

of the government’s case and refused to find entrapment

as a matter of law.

After the Jury had begun deliberations, they returned,

asked questions, and received correct responses from the

Judge. The Jury returned to its deliberations. The Trial

Judge ex inero moto, over objection, called the Jury back,

incorrectly told them what some evidence had been, ex-

cused them and after Dr. Greenfield pointed out his error

called the Jury back again to “correct’’ what he had said.

This exchange was on crucial evidence concerning whether

Dr. Greenfield was in his office on certain occasions when

prescriptions were obtained.

The Court of Appeals for the Fifth Circuit was present-

ed with the above questions and although the Court

wrote to each issue the Trial Court was affirmed on June

5, 1978.

REASONS FOR GRANTING WRIT

I, Ui, Iii

The decision of the Court of Appeals for the Fifth Cir-

cuit concerning standards to be met for admission of tape

recordings and transcripts is not consistent with the de-

cisions of the United States Courts of Appeal for the Se-

cond and Eighth Circuits. While there may be no “formu-

listic” standards governing admissibility of tape record-

ings and transcripts there must be a baseline. When the

government admits attempting four tapes which were des-

troyed and produces five times which are unintelligible,

contain gaps, and have no discernible beginning and end-

ing the baseline standard has not been met. The Trial

7

Judge should have discretion, but it isn’t unfettered.

When fifty percent or more of the recorded material is

unintelligible, the trustworthiness of the recordings as a

whole must be questioned. The recordings in this case

simply did not meet the minimum standards of the

United States v. Philip Onori (5 Cir. 1976), 535 F.2d

938 and certainly not those of United States v. McMillan

(8 Circ. 1974), 508 F.2d 101, 104, cert. den, 421 U.S.

916, 95 S.Ct. 1577, 43 L.Ed2d 782 (1975) or United

States v. McKeever (S.D. NY 1958), 169 F.Supp. 426,

rev'd on other grounds (2 Cir. 1959), 271 F.2d 669.

The requirements of Brady v. Maryland, 373 U.S. 83,

10 L.Ed.2d 215, 83 S.Ct. 1194 (1963) should at least

preclude the use by the government of the five tapes

when four have admittedly been destroyed. The op-

portunity to evaluate the evidence for exculpatory ma-

terial was totally lost when the agent destroyed these

tapes. The Fifth Circuit ignored th. defense argument on

the missing tapes.

IV.

The Fifth Circuit in considering the issue of the pre-

judice to the Defendant by the Trial Judge’s comments

incorrectly sur»marizes what happened. The Jury returned

and asked a question on an evidentiary matter of the

Court which the Court answered. The Jury went back to

its deliberations. The Court, then ex mero moto, over the

objection of Dr. Greenfield, called the Jury back and in-

correctly explained a critical piece of evidence. After the

Jury again retired the defense called this error to the

Court’s attention and the Court had to call the Jury back

and explain that he had made a mistake. This series of e-

vents involved crucial evidence concerning whether or not

Dr. Greenfield was in his office when the prescription

(upon which he was ultimately convicted) was given to

the undercover agent. The Court incorrectly told the

Jury that Dr. Greenfield was not in his office on two

occasions. This was not the evidence and although the

Court later corrected this misstatement it simply was the

kind of error that cannot be glossed over by making re-

ference to the correctness of the Court’s earlier charge.

While we do not contend that the Court was deliberate-

ly partisan, we do insist that the Jury’s function in eval-

uating the evidence was encroached upon. Further, con-

sidering the Defendant’s conviction on the one count

where the Court had incorrectly stated the Petitioner was

not in the office, it cannot be said that the Judge’s com-

ments were not unfair and prejudicial to the Defendant.

The Petitioner recognizes that a court may analyze and

dissect evidence but the court may not either distort or

add to the evidence. The Trial Judge’s comments in this

case did not meet the standards of Quercia v. United States

(1933), 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321.

Further, when a trial judge tries to help a jury with its

difficulties he should clear the difficulties away with

“concrete accuracy.” Bollenbach v. United States (1946),

326 U.S. 607, at p. 613. The Trial Judge did not do that

here. He misstated the evidence to the substantial detri-

ment of the Petitioner.

V.

In Petitioner’s first trial he was acquitted on six counts

of the indictment. On his retrial the Court, over the ob-

jection of Defendant, and contrary to Rule 403 of the

Federal Rules of Evidence, allowed into evidence copies

of prescriptions which were written by Dr. Greenfield.

The Petitioner recognizes that the Court in its discretion

could allow the government to show the visits by the

undercover agents to Dr. Greenfield’s office on these six

occasions and could show that she obtained prescriptions.

The Petitioner insists that to allow the government to

“prove” charges on which he had been acquitted was

extremely prejudicial.

To allow the government to essentially “try the De

fendant again” on these charges put the Defendant in

jeopardy twice in violation of the Fifth Amendment of

the Constitution of the United States.

The Trial Court abused its discretion in this regard and

the Fifth Circuit sustained the Trial Court on the theory

that the evidence admitted was clearly material. The

Trial Court abused its discretion in admitting the evidence

under Federal Rules of Evidence 403 and 404(b). This

evidence, including the copies of the prescriptions, was

highly prejudicial and should not have been admitted be-

cause the probative value was far outweighed by the pre-

judicial impact on the Defendant.

VI.

The evidence established entrapment as a matter of

law. The Trial Court refused to so find and the Fifth

Circuit sustained the Trial Judge. The undisputed evi-

dence was that Dr. Greenfield was treating the under-

cover agent on each and every occassion when she obtain-

ed prescriptions. Five local physicians said what Petitioner

did, under the fact circumstances, was for a legitimate

medical purpose. The evidence clearly reflected that his

10

prescriptions for the undercover agent were at her con-

stant urging, cajoling, importuning and were given her as

a result of her creative lies concerning her need for the

Ionamin.

The record contains no evidence of predisposition on

Dr. Greenfield’s part to write illegal prescriptions. The

government agents created a bogus story. Dr. Greenfield

gave the agent a physical check-up and made a medical

record. He, rather than being disposed to “‘push dope,”’

suggested coffee rather than pills to the undercover agent.

The record is replete with the evidence of the cajoling, ly-

ing and creative activity on the part of the government.

If Greenfield committed a crime he was entrapped.

United States v. Carroll (6 Cir. 1975), 518 F.2d 187.

No criminal design originated with Dr. Greenfield. United

States v. Russell (1973), 411 U.S. 423, 93 S.Ct. 1637, 36

L.Ed.2d 366. The requirements of the United States v.

Russell, supra, on this record require the finding, if Dr.

Greenfield committed a crime, he was entrapped.

CONCLUSION

William Russell Greenfield submits that the Writ of

Certiorari should be granted and upon final determination

of this cause the conviction of the Petitioner in the United

States District Court for the Middle District of Alabama

should be reversed in that:

(a) That there are material and substantial conflicts

and differences in the standards required in the Second

and Eighth Circuits for the admission of tape recordings

11

and transcripts and the standards required in the Fifth

Circuit;

(b) That these «..ficulties and conflicts are due to

be resolved by the Supreme Court in a manner establish-

ing a baseline requirement for the admission of such evi-

dence;

(c) That the Court of Appeals for the Fifth Circuit

failed to observe the requirements of Brady v. Maryland,

supra in evaluating the Petitioner’s claim concerning the

tapes which the government had destroyed;

(d) That the admission of certain evidence, and the

factual context in which it was admitted, violated the

double jeopardy provisions of the Fifth Amendment to

the Constitution of the United States;

(e) That the evidence of record demonstrates that the

Defendant was entrapped, if he committed a crime at all,

utilizing the standards and teachings of United States v.

Russell, supra.

For the reasons outlined, Petitioner respectfully re-

quests this Court to grant his Petition for Writ of Certior-

ari in order that the issues may be fully briefed and de-

cision in favor of Petitioner ultimately reached.

RESPECTFULLY SUBMITTED,

ames Jerry Wood”

Attorney for Petitioner

Seed |

12

ADDRESS:

P. O. Box 4189

Montgomery, Alabama 36101

DATED: July 5, 1978.

CERTIFICATE OF SERVICE

I, James Jerry Wood, a member of the Bar of the

Supreme Court of the United States and counsel of record

for William Russell Greenfield, Jr., M.D., Petitioner herein,

hereby certify that on July 5, 1978, pursuant to Rule 33,

Rules of the Supreme Court, I served three copies of the

foregoing Petition for Writ of Certiorari on each of the

parties herein, as follows:

On the Solicitor General, Department of Justice, Wash-

ington, D. C. 20530, by depositing such copies in the

United States Post Office, Montgomery, Alabama, first

class postage prepaid, properly addressed to the post off-

ice address of the Solicitor General, Washington, D.C.

20530.

On the Honorable Barry Teague, United States Attorney

for the Middle District of Alabama, Federal Building,

Montgomery, Alabama 36104, by depositing such copies

in the United States Post Office, Montgomery, Alabama,

first class postage prepaid, properly addressed to the post

office address of the United States Attorney, the above-

13 14

named counsel of record, at the Federal Building, Mont-

gomery, Alabama 36104.

All parties required to be served have been served.

DATED 5th day of July, 1978.

\ dgmes Je ood

P, O.Box 4189

Montgomery, Alabama 36104

15

APPENDIX A

OPINION

16

UNITED STATES v. GREENFIELD 4597

UNITED STATES of America,

Plaintiff-Appelle,

Vv.

William Russell GREENFIELD, M. D.,

Defendant-Appellant.

No. 77-5617.

United States Court of Appeals,

Fifth Circuit.

June 5, 1978

On remand, 554 F.2d 179, defendant was convicted

before the United States District Court for the Middle

District of Alabama, Virgil Pittman, Chief Judge, of

knowingly distributing a controlled substance without a

legitimate medical purpose, and he appealed. The Court

of Appeals, Alvin B.“ Rubin, Circuit Judge, held that:

(1) although trial judge inaccurately amended answer to

jury’s factual question, defendant was not denied a fair

trial where only a short time elapsed from misstatement to

correction and comments did not betray partisanship,

add to the evidence or encroach on jury’s functions;

(2) tape recordings are not per se inadmissible because

they are partially inaudible; (3) it was not error to permit

the Government to introduce evidence of contacts be-

tween defendant and government agent prior to earliest

date named in the indictment, during which defendant

also prescribed drugs for the agent, and (4) in view of

17

evidence concerning quantity of drugs, defendant’s in-

quiries and his having prescribed drugs for agent in others’

name, issue of entrapment was for jury.

Affirmed.

1. Criminal Law e859

Although in amended answer to factual question of the

jury the trial judge gave an incorrect summary of part of

the evidence, defendant was not deprived of a fair trial

where only a short time elapsed from misstatement to

correction and when read in context and taking into ac-

count the court’s accurate charge, such comments did not

betray partisanship, add to the evidence or encroach on

the jury’s function.

2. Criminal Law @=438.1

There are no formulistic standards governing admiss-

ibility of tape recordings and transcripts thereof.

3. Criminal Law 438.1

Tape recordings are not per se inadmissible because

they are partially inaudible; issue is whether the unin-

telligible portions are so substantial as to render the re-

cording as a whole untrustworthy and such determination

is left to the sound discretion of the trial judge.

4. Criminal Law 2444

In case of tape recordings and transcripts thereof re-

commended procedure is to hold the prior hearing con-

cerning intelligibility of the tapes and accuracy of the

proposed transcripts, with opposing counsel entitled to

an opportunity to contest the transcripts.

18

5. Criminal Law 2438.1

Although tape recordings were allegedly inaudible, it

was not abuse of discretion to permit the jury to hear

the tapes or read the transcripts thereof where trial judge.

held a prior hearing concerning intelligibility of the tapes

and accuracy of the transcripts, tapes were available to

defendant from time of prior trial and Government laid

a proper foundation for their admission.

6. Criminal Law @369.2(7)

It was not error to permit the Government to introduce

evidence of contacts between defendant and government

agent prior to earliest date named in the indictment, dur-

ing which defendant also prescribed drugs for the agent,

since such evidence was material to issue whether his con-

tinuing prescriptions for the same patient, some written

in the names of other persons, were for legitimate medical

purposes, evidence was not inflammatory, judge issued a

proper limiting instruction and verdict belied notion that

jury may have been swayed into convicting defendant for

being a bad individual. Comprehensive Drug Abuse Pre-

vention and Control Act of 1970, §§ 101 et seq., 401,

401(a)(1), 21 U.S.C.A. §§ 801 et seq., 841, 841(a)(1);

Federal Rules of Evidence, rules 403, 404(b), 28 U.S.C.A.

7. Criminal Law @739.1(2)

Defense of entrapment was for jury, in prosecution

for knowingly distributing a controlled substance without

a legitimate medical purpose, in view of evidence concern-

ing quantity of drugs prescribed, nature of defendant’s

inquiries and his having prescribed drugs for government

agent in others’ name. Comprehensive Drug Abuse Prevent-

ion and Control Act of 1970, §§ 101 et seq., 401(a)(1),

19

21 U.S.C.A. §§ 801 et seq., 841(a)(1).

8. Drugs and Narcotics 123

Conviction of knowingly distributing a controlled sub-

stance without a legitimate medical purpose was support-

ed by the evidence, including evidence that defendant gave

government agent a prescription for Ionamin without

seeing her. Comprehensive Drug Abuse Prevention and

Control Act of 1970, §§ 101 et seq., 401(a)(1), 21

U.S.C.A. §§ 801 et seq., 841(a)(1).

atin

Appeal from the United States District Court for the

Middle District of Alabama.

Before WISDOM, THORNBERRY, and RUBIN, Cir-

cuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Following the reversal of his first conviction on three

of ten counts of knowingly distributing a controlled sub-

stance without a legitimate medical purpose, in violation

of 21 U.S.C § 841(a)(1), United States v. Greenfield, 5

Cir., 554 F.2d 179, the defendant was retried on those

three counts, and convicted on one. He again appeals.

Having considered carefully each of the errors contended

to have been committed at the new trial, we find that

the defendant was fairly tried and affirm the conviction.

See Greenfield, supra, 554, F.2d at 180—181.

{1] After the jury had begun its deliberations, it put

a factual question to the judge. The judge gave a correct

answer that he later amended inaccurately, giving the

jury an incorrect summary of part of the evidence. How-

ever, immediately after the jury left the courtroom, coun-

sel objected, the judge learned that he had been incorrect,

and recalled the jury. He then gave what both sides agree

to be an entirely correct statement of evidence. The jury

thereafter deliberated for some time, and returned a ver-

dict of “not guilty” on two counts, guilty on the third.

Read in context and taking into account also the court’s .

accurate charge, to which no objection is made, the court’s

comments do not betray partisanship, add to the evidence,

or encroach on the jury’s functions. Compare U. S. ».

Cisneros, 5 Cir. 1974, 491 F.2d 1068. They were finally

made entirely accurate, only a short time elapsed from

_ misstatement to correction, and they were not unfair to

the defendant.

[2-5] It is also argued that the court erred in permit-

ting the jury to hear and to read transcripts of conver-

sations between the government’s agent and Dr. Green-

field, recorded through a transmitter in the agent’s shoul-

der bag and broadcast to a receiver in a van parked near-

by. The government attempted to tape conversations on

nine occasions, but could produce audible tapes on only

five; the remaining four tapes were destroyed, and no re-

cords concerning them were kept. The defense argues

that the extant tapes are largely inaudible, confusing,

and substantially untrustworthy.

This court has not adopted any formulistic standard

to guide the admissibility of tapes and transcripts. Tapes

are not per se inadmissible because they are partially in-

audible; the issue is whether the unintelligible portions

“are so substantial as to render the recording as a whole

untrustworthy. This determinations is left to the sound

discretion of the trial judge.”. U. S. v. Avila, 5 Cir. 1971,

443 F.2d 792, 795, cert. denied, 1971, 404 U.S. 944,

92 S.Ct. 295, 30 L.Ed.2d 258.

21

The tapes were available to the defendant from the time

of the first trial. The trial judge followed the course we

have recommended in holding a prior hearing concerning

the intelligibility of the tapes and the accuracy of the pro-

posed transcripts, and in permitting defense counsel to

contest the transcript as proposed by the government,

United States v. Onori, 5 Circ. 1976, 535 F.2d 938, 947-—-

949. Further, the government laid a proper foundation

for the admission of the tapes, as required by U’ S. v.

Biggins, 5 Cir. 1977, 551 F.2d 64, 66. The court did not

abuse its discretion in permitting the jury to hear the

tapes or to read the transcripts in question.

[6] The court did not err in permitting the govern-

ment to introduce evidence of contacts between Dr.

Greenfield and the government’s agent prior to the earliest

date named in the indictment, during which Greenfield

also prescribed drugs for the agent. While Dr. Greenfield

had been earlier acquitted of six counts of violating 21

U.S.C. § 841 that were, predicated on those earlier con-

tacts the evidence admitted was clearly material to the

question whether his continuing prescriptions for the same

patient (some written in the names of other people)

were for a legitimate medical purpose. The evidence was

not inflammatory, the judge issued a proper limiting in-

struction, and the jury’s evidently considered verdict

belies the notion that it may have been swayed into

convicting the defendant for being a bad individual.

Consequently, it cannot be said that judge abused his

discretion in admitting evidence under the Federal Rules

of Evidence, Rules 403 and 404(b).

[7] The judge correctly charged the jury on entrap-

ment; the evidence was not sufficient to require a direct-

ed verdict. There was evidence concerning the quantity

of drugs prescribed, the nature of the doctor’s inquiries,

and of his having prescribed drugs for this patient in a

name other than the patient’s; these warranted the con-

clusing that no legitimate medical purpose underlay his.

prescriptions, and that his purpose in prescribing drugs

without a legitimate purpose was not “implanted” by the

government’s informer. U. S. v. Russell, 1973, 411 U.S.

423, 435-436, 93 S.Ct. 1637, 1644—1645, 36 L.Ed.2d

366.

[8] The defense finally contends that, even viewing

the evidence most favorably for the government, insuffi-

cient evidence exists to support the jury’s verdict under

Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457,

86 L.Ed. 680. There was adequate evidence to support

the jury verdict as to February 11, when Greenfield gave

the government agent a prescription for Ionamin without

seeing her.

For these reasons, the conviction is AFFIRMED.

UNITED STATES COURT OF APPEALS

For The Fifth Circuit

No. 77-5617

D. C. Docket No. CR-76-14-S

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIAM RUSSELL GREENFIELD, M.D.,

Defandant-Appellant.

Appeal from the United States District Court for the

Middle District of Alabama

Before WISDOM, THORNBERRY, and RUBIN,

Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the

Middle District of Alabama, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of

the said District Court in this cause be, and the same is

hereby, affirmed.

June 5, 1978

Issued As Mandate:

—

24

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 77-5617

UNITED STATES OF AMERICA,

Plaintiff-Appelle.

versus

WILLIAM RUSSELL GREENFIELD, M.D.,

Defendant-Appellant.

Appeal from the United States District Court for the

Middle District of Alabama

ORDER:

( ) The motion of

for stay of the issuance of the mandate pending peti-

tion for writ of certiorari is DENIED. See Fifth Cir-

cuit Local Rule 15, as amended January 11, 1972.

(“) The motion of Appellant

for stay of the issuance of the mandate pending peti-

tion for writ of certiorari is GRANTED to and in-

cluding July 5, 1978 the stay to con-

tinue in force until the final disposition of the case by

the Supreme Court, provided that within the period

()

()

above mentioned there shall be filed with the Clerk

of this Court the certificate of the Clerk of the Sup-

reme Court that the certiorari petition has been filed.

The Clerk shall issue the mandate upon the filing of

a copy of an order of the Supreme Court denying

the writ, or upon the expiration of the stay granted

herein, unless the above mentioned certificate shall

be filed with the Clerk of this Court within that time.

The motion for a further stay of the issuance of the

mandate is GRANTED to and including

, under the same conditions as set

forth in the preceding paragraph.

IT IS ORDERED that the motion for a further stay

of the issuance of the mandate is DENIED.

/Circuit Judge

UNITED STATES CIRCUIT JUDGE

ote